[OSM-legal-talk] Questions about CTs 1.2.4

Francis Davey fjmd1a at gmail.com
Thu Apr 14 09:34:20 BST 2011


On 14 April 2011 08:54, Robert Whittaker (OSM) <
robert.whittaker+osm at gmail.com> wrote:

If I'm reading what Francis has written correctly, this would seem to
> be a very real problem with CT 2.2.4, which would prevent us using
> almost any source which wasn't PD or for which the contributor didn't
> own the copyright. In particular, Francis is saying that we can't make
> use of CC-By or ODbL sources because of clause 2.
>
>
Strictly speaking, you can make use of them, but contributors are (i) in
breach of contract in contributing that material and (ii) may (in some
circumstances) infringe copyright by authorising OSMF to do acts which are
infringements of the licence (eg CC...) under which the material was
available.

Neither of these may seem like a significant risk. (i) would only be a
problem if OSMF itself, or a successor in title, decided to sue.

(ii) would normally not apply. Arguably the statement of intention earlier
in the CT's (to the effect that OSMF do not intend to infringe the
intellectual property of any other person) is enough that a contributor
could argue they are only authorising lawful use, whatever clause 2 might
say. I wouldn't bet on that.

The other reason (ii) may not arise is because there is in fact no way to
infringe, depending on the original licence (of which there are an
increasing number as governments roll their own) and what OSMF then goes on
to do.

NB: this isn't a formal contractual analysis, but it is generally applicable
since most countries would interpret the CT's as required under English law.
The IP analysis is more complex since different IP systems will be applied
to decide liability. The above analysis is an attempt to look at it from the
English/UK position. Things will vary abroad.


> From the caveats in clauses 3 and 4, I guess that the intention is
> that you should be able to use eg CC-by sources (although it's
> questionable whether or not downstream attribution is guaranteed under
> ODbL, and the possibility of a future license change is also
> problematic). Nevertheless, I don't even think that an agreement by
>

There's also an untidy relationship between CC-by's requirement for
attribution and the fact that OSMF is only obliged to attribute if asked to
do so rather than in any event.


> OSMF to only use the Contents in a manner which is compatible with a
> given source license gives you the ability to make the broad rights
> grant in clause 2, unless the license specifically allows such a
> grant. (A CC-By license does not say that you can give a third-party
> the right to do "anything restricted by copyright" as long as they
> only use those rights in certain ways.)
>

Right. That is, I am afraid, my point.


>
> I though a previous version of the CTs (possibly 2.2.3) had an
> additional phrase in clause 2, along the lines of "to the extent which
> you are able" which I thought was designed to address this point. My
> interpretation of it was that it allowed you not to have to make the
> grant for parts of the submitted contents which were under a license
> that didn't allow it. The CTs then relied on clause 1 to ensure (as
> much as possible) that the Contents at least allowed OSMF to
> distribute them under the currently chosen license.
>

Right. I think it was I who suggested it.

There are arguments both way: if you add such a phrase, contributors do not
have to worry about whether they have the right to grant, all they are doing
is granting what rights they have. That's very tidy. On the other hand it
means that OSMF cannot rely on having all the rights it needs to publish the
map or licence it to others. To do that OSMF needs more rights. Hence not
having the phrase gives more certainty to OSMF.

So neither approach is "right". There's a fundamental difficulty here,
namely that incoming data may be subject to a variety of rights licensed
under a variety of licences. Somehow folding all that data with its
disparate rights into a single product licensed under a single licence is
not an easy task.

-- 
Francis Davey
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